State Consumer Disputes Redressal Commission
Aluri Krishna Kumari, Krishna District vs Sompo General Insurance Company Ltd, ... on 13 March, 2013
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD (CIRCUIT BENCH AT VIJAYAWADA ) FA 1079/2011 against CC 16 of 2011 on the file of the District Consumer Forum II: Krishna District at Vijayawada. Between : Aluri Krishna Kumari, W/o late Aluri Srinu @ Srinivasarao Hindu, aged about 38 years, R/o Vanukuru, Penamaluru Mandal, Krishna District . Appellant/complainant And The Branch Manager SOMPO General Insurance Company Ltd Opposite Mahila Police Station Labbipet, Vijayawada 10 .. Respondent/opposite party Counsel for the Appellant : M/s. Ch. Raghuram Counsel for the Respondent : Mr. K. Madhusudhana Reddy Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Thursday, the Thirteenth Day of March Two Thousand Thirteen Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1. This is an appeal preferred by the unsuccessful complainant as against the orders dated 09.05.2011 in CC 16/2011 on the file of the District Consumer Forum II, Krishna District at Vijayawada. For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The gist of the complaint is that the husband of the complainant was driver by profession and he worked as driver of Lorry bearing No. AP 26 TT 7036 owned by Mr. B. Kaleswara Rao, who, insured it with the opposite party for a period of one year , i.e., from 31.07.2010 to 30.07.2011. while the things stood thus, on 25.11.2010 when the deceased husband of the complainant was proceeding in the said lorry as driver from Visakhapatnam to Hyderabad with a load of coal and by the time he reached near Nandigama, the lorry met with an accident and as a result of which the said driver died. As the dependent/legal heir of the deceased drier, the complainant filed WC 3/2011 before the Commissioner for workmen as compensation at Machilipatnam seeking compensation for death of her husband who died during course of his employment, besides, compensation under WC Act the complainant claimed Rs. Two lakhs from the opposite party under Personal Accident coverage but the same was repudiated stating that neither the deceased had taken the insurance policy under Personal Accident nor the owner of the lorry paid premium to cover the risk of its driver under Personal Accident. In fact, the complainant is entitled for insurance amount under Personal Accident of the deceased husband for rs.100/- was paid by owner of lorry to cover the risk of owner-driver. Hence the complaint to direct the opposite party to pay Rs. 2 lakhs towards personal Accident Benefit, so also, damages of Rs.10,000/- for mental agony on account of deficiency in service.
3. OP filed counter opposing the claim of the complainant and denying the allegations made in the complaint and disputing the claim and the brief facts of the counter are as under :
The opposite party issued Insurance policy bearing No. 2315/50855033/00/00 to one B. Kaleswara Rao in respect of his vehicle bearing No. AP 26 TT 7036 and received total premium of Rs.24,280/- including service tax of Rs.1,500/- out of the total premium, Rs.100/- towards compulsory PA to owner-cum-Driver of Rs.2,00,000/- to cover the risk during the period from 31.07.2010 to 30.07.2011 subject to IMT endorsements 21,28, 40. As per rule , the owner of the insured vehicle holding an effective driving licence is termed as Owner-Driver.
Therefore, the risk under personal accident also is limited to the extent of owner driving the insured vehicle but not to paid drivers. Since the deceased was a paid driver the said rule is not applicable and he is not entitled for any amount under Personal Accident scheme. All class of vehicles Personal Accident to paid drivers, cleaners and conductors will be covered as Endorsement IMT -17 and if the owner/insured opted for and paid premium accordingly. Since there is no endorsement under IMT 17 as the owner did not pay premium for personal accident to his workers and that there is no deficiency in service on their part and thus prayed to dismiss the complaint.
4. Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A to A11 were marked on behalf of the complainant and Ex. B1 wasmarked for the OP.
5. Having heard both sides and considering the evidence on record, the District Forum dismissed the complaint.
6. Feeling aggrieved with the said order the unsuccessful OPs filed this appeal on several grounds and mainly contended that for the purpose of P.A. Claim, IMT endorsements 21, 28 and 40 is to provide additional security for the employees of the insured i.e. driver and cleaner only and that as per the policy, necessary additional premium of Rs.100/- is collected for the driver and 11 employees and that under IMT 28 and 40 the complainant is entitled to get Rs.2 lakhs and that the owner-driver means at the time of accident who is doing duty at that time and that the District Forum came to the wrong conclusion that GR 36(B), 1,2,3,4 provides compulsory personal accident cover for the persons except cleaner whether the policy recovered under IMT 17 or not under the complaint. The opposite party intentionally trying to avoid the payment, even though owner paid the premium in IMT 17 also and thus prayed to set aside the impugned order and consequently allow the appeal
7. Heard the counsel for the appellant and written arguments were filed on behalf of the opposite party .
8. Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts?
9. There is no dispute that the Lorry bearing No. AP 26 TT 7036 owned by Mr. B. Kaleswara Rao was insured with the opposite party for the period from 31.07.2010 to 30.10.2011 and that he paid premium amount of Rs.24,280/- including service tax of Rs.1,500/- and out of the said premium an amount of Rs.100/- was paid towards compulsory PA to owner-driver to cover the risk of Rs. 2 lakhs and that Aluri Srinivasa Rao, husband of the complainant was working as driver of the said lorry and that on 25.11.2010 when the said driver was proceeding with the said lorry loaded with coal as a driver from Visakhapatnam to Hyderabad and by the time the vehicle reached Nandigaram it met with an accident and as a result of it the said driver died. The opposite party contended that the complainant filed WC 2/2011 before the Assistant Commissioner of Labour at Machilipatnam and that Rs.4,99,447/- was ordered to be paid to her and that the Insurance company deposited the said amount and the complainant did not dispute the same. The grievance of the complainant is that Rs.2 lakhs under Personal Accident was not paid to her and hence she was constrained to file the complaint. Where as the defence of the opposite party is that the insured of the said vehicle paid Rs.100/- towards premium under Personal Accident to cover the risk of exclusively to the owner who drive the vehicle with valid subsisting driving licence which is required under IMT General Rule 36-A but no premium was paid to cover the risk of paid driver and therefore the claim was repudiated.
Perusal of Ex. A2 and B1 policy and book-let with IMT rules disclose that the insured paid only Rs.100/- to cover personal accident to owner-driver and an additional premium of Rs.25/- under the head paid driver to indemnify the insureds legal liability under workmens Compensation Act, 1923 and did not pay PA premium to cover paid driver, cleaner and conductor. There is no evidence on record to show that the insured paid personal Accident premium to cover paid driver, cleaner and conductor. There is no dispute that the deceased is neither registered owner of insured vehicle so as to cover the personal accident nor any premium paid by insured towards personal accident to his workers. Therefore, there is acceptable force in the contention of the opposite party to hold that the complainant is not entitled for any amount under Personal Accident. The relevant IMTs are quoted for ready feference.
IMT.
28. Legal liability to paid driver and/or conductor and/or cleaner employed in connection with the operation of insured vehicle.
( For all classes of vehicles) In consideration of an additional premium of Rs.25/- notwithstanding anything to the contrary contained in the policy it is hereby understood and agreed that the insurer shall indemnity the insured against the insureds legal liability under the Workmens Compensation Act, 1923, the Fatal Accidents Act, 1855 or at Common Law and subsequent amendments of these Acts prior to the date of this Endorsement in respect of personal injury to any paid driver and /or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured herein and will in addition be responsible for all costs and expenses incurred with its written consent,.
Provided always that (1) this Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or group of insurers a Policy of Insurance in respect of liability as herein defined for insureds general employees:
(2) The insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations;
(3) The insured shall keep record of the name of each paid driver conductor cleaner or persons employeed in loading and/or unloading and the amount of wages and salaries and other earnings paid to such employees and shall at all times allow the insurer to inspect such records on demand.
(4) In the event of the Policy being cancelled at the request of the insured no refund of the premium paid in respect of this Endorsement will be allowed.
Subject otherwise to the terms conditions limitations and exceptions of the Policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988.
IMT.
40. Legal liability to paid driver and/or conductor and/or cleaner employed in connection with the operation of Motor vehicle.
( For buses, taxis and motorized three/four wheelers under commercial vehicles tariff ) In consideration of payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall l indemnity insured against his legal liability under the Workmens Compensation Act, 1923, and subsequent amendments of that Act prior to the date of this Endorsement the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver and /or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured and will in addition be responsible for all costs and expenses incurred with its written consent,.
The premium to be calculated and paid while taking insurance of the vehicle concurred at the rate of Rs.25/- per driver and/or conductor and/or cleaner.
Provided always that (1) this Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or group of insurers or Group of Underwriters a Policy of Insurance in respect of liability as herein defined for his general employees:
(2)The insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations;(3)
The insured shall keep record of the name of each driver, cleaner, conductor or person employed in loading and/or unloading and the amount of wages salary and other earnings paid to such employees and shall at all times allow the insurer to inspect such record.(4)
In the event of the Policy being cancelled at the request of the insured no refund of the premium paid in respect of this Endorsement will be allowed.
Subject otherwise to the terms exceptions conditions and limitations of this Policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988.-206.
As seen from IMT 28 and 40, the claim made by the appellant/complainant is not sustainable and rightly the opposite party repudiated the claim. The District Forum discussed all the aspects in correct perspective and arrived at right conclusion . The appeal is devoid of merit and is liable to be dismissed.
10. In the result, the appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs.
MEMBER MEMBER DATED 14.03.2013.